STATE OF MAINE SUPREME JUDICIAL COURT SITTING AS THE LAW COURT LAW COURT DOCKET NO. PUC ED FRIEDMAN, et al., Appellants

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1 STATE OF MAINE SUPREME JUDICIAL COURT SITTING AS THE LAW COURT LAW COURT DOCKET NO. PUC ED FRIEDMAN, et al., Appellants v. MAINE PUBLIC UTILITIES COMMISSION Appellee. On Appeal from the Maine Public Utilities Commission BRIEF OF APPELLEE MAINE PUBLIC UTILITIES COMMISSION Jordan D. McColman (ME Bar No ) Leslie E. Raber (ME Bar No ) Mitchell M. Tannenbaum (ME Bar No ) MAINE PUBLIC UTILITIES COMMISSION State House Station 18 Augusta, ME (207) Counsel for Maine Public Utilities Commission

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF FACTS AND PROCEDURAL HISTORY... 1 I. The Smart Meter Cases... 1 A. The Original Proceeding Approving Advanced Metering Infrastructure... 1 B. The "Opt-Out" Investigation... 2 II. The Friedman Complaint... 8 A. Initial Proceeding... 8 B. Decision on Appeal C. Proceeding on Remand ISSUES PRESENTED FOR REVIEW SUMMARY OF ARGUMENT STANDARD OF REVIEW ARGUMENT I. The Commission's Order Fully Comports with the Standard Expressed by the Law Court in Friedman and the Commission's Statutory Mandate in 35-A M.R.S II. The Commission's Decision is Supported by Substantial Evidence III. The Commission Properly Applied the Burden of Proof IV. The Commission's Decision is Supported by the Concurring Opinions and Decisions of Both Commissioners A. Commissioner Littell's Finding that CMP's Smart Meters are Safe is not Predicated on Medical Opt-Outs B. Commissioner Littell's Concurrence Fully Supports His Finding That CMP's Smart Meters are Safe CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES Cases Central Me. Power Co. v. Pub. Utils. Comm'n, 405 A.2d 153 (Me. 1979)... 22, 32 Central Me. Power Co. v. Pub. Utils. Comm'n, 414 A.2d 1217 (Me. 1980)... 23, 31 Central Me. Power Co. v. Pub Utils. Comm'n, 2014 ME Competetive Energy Servs. LLC v. Pub. Utils. Comm'n, 2003 ME Dunn v. Pub. Utils. Comm'n, 2006 ME Friedman v. Pub. Utils. Comm'n, 2012 ME , 22, 24, 30 Marks v. U.S., 430 U.S. 188, 193 (1977) Mayhew v. Burwell, 772 F.3d 80, 88 (1st Cir. 2014) New England Tel. & Tel. Co. v. Pub. Utils. Comm'n, 390 A.2d 8 (Me. 1978) New England Tel. & Tel. Co. v. Pub. Utils. Comm'n, 448 A.2d 272 (Me. 1982)... 22, 23 Pine Tree Tel. & Tel. v. Pub. Utils. Comm'n, 631 A.2d 57 (Me. 1993)... 23, 31 Wilkins v. Pub. Utils. Comm'n, No. PUC , Order Dismissing Appeal (Nov. 21, 2011) Statutes and Regulations Pub. L. No , 123 Stat. 115 (2009) A M.R.S , 20, 24, 25, A M.R.S passim 35-A M.R.S C.M.R. ch. 110, 2(K) C.M.R. ch. 110, 11(C)(2)... 7 Me. R. Evid. 801(c) ii

4 Administrative Rulings Central Maine Power Company, Request for Alternative Rate Plan, Docket No (II), Order Approving Installation of AMI Technology (Feb. 25, 2010)... 1, 2 Central Maine Power Company, Request for Alternative Rate Plan, Docket No , Alternative Rate Plan Vols. V & VI (May 1, 2007)... 1 Deborah Oliver, et al., Request for Commission Investigation into Central Maine Power Company and Smart Meters, Docket No , Notice of Investigation and Consolidation (Sep. 26, 2012) Ed Friedman, et al., Request for Investigation into Smart Meters and Smart Meter Opt-Out, Docket No , Order Dismissing Complaint (Aug. 31, 2011)... 9 Ed Friedman, et al., Request for Investigation into Smart Meters and Smart Meter Opt-Out, Docket No , Notice of Investigation (July 24, 2012) Ed Friedman, et al., Request for Investigation into Smart Meters and Smart Meter Opt-Out, Docket No , Order (Dec. 19, 2014)... passim Elisa Boxer-Cook, et al., Request for Commission Investigation in Pursuing the Smart Meter Initiative, Teresa Swinbourne, et al., Request for Commission Investigation into Unreasonable, Insufficient and Discriminatory Decisions to Implement the use of Smart Meters to CMP Customers Disregarding Choice in Regards to Wireless Activity and Consumer's Right to Privacy Within Their Homes, Docket Nos and , Notice of Investigation (Jan. 7, 2011)... 2, 3, 4 Elisa Boxer-Cook, et al., Request for Commission Investigation in Pursuing the Smart Meter Initiative, Teresa Swinbourne, et al., Request for Commission Investigation into Unreasonable, Insufficient and Discriminatory Decisions to Implement the use of Smart Meters to CMP Customers Disregarding Choice in Regards to Wireless Activity and Consumer's Right to Privacy Within Their Homes, Suzanne A. Foley-Ferguson, et al., Request for Commission Investigation Into Advanced Metering Infrastructure in Accordance with the Legislature, Stephen & Dianne Wilkins. Request for Commission Investigation into CMP's Violation of Homeowner Rights and the Exposure iii

5 of the Public Health Risk of Smart Meters, Docket Nos , , , and , Notice of Investigation (Feb. 18, 2011)... 4 Elisa Boxer-Cook, et al., Request for Commission Investigation in Pursuing the Smart Meter Initiative, Teresa Swinbourne, et al., Request for Commission Investigation into Unreasonable, Insufficient and Discriminatory Decisions to Implement the use of Smart Meters to CMP Customers Disregarding Choice in Regards to Wireless Activity and Consumer's Right to Privacy Within Their Homes, Suzanne A. Foley-Ferguson, et al., Request for Commission Investigation Into Advanced Metering Infrastructure in Accordance with the Legislature, Stephen & Dianne Wilkins. Request for Commission Investigation into CMP's Violation of Homeowner Rights and the Exposure of the Public Health Risk of Smart Meters, Julie Tupper, et al., Request for Commission Investigation to Allow CMP Customers to Retain Existing Analog Meters, Docket Nos , , , , and , Order (Part I) (May 19, 2011)... 7, 8, 9, 10 Elisa Boxer-Cook, et al., Request for Commission Investigation in Pursuing the Smart Meter Initiative, Teresa Swinbourne, et al., Request for Commission Investigation into Unreasonable, Insufficient and Discriminatory Decisions to Implement the use of Smart Meters to CMP Customers Disregarding Choice in Regards to Wireless Activity and Consumer's Right to Privacy Within Their Homes, Suzanne A. Foley-Ferguson, et al., Request for Commission Investigation Into Advanced Metering Infrastructure in Accordance with the Legislature, Stephen & Dianne Wilkins. Request for Commission Investigation into CMP's Violation of Homeowner Rights and the Exposure of the Public Health Risk of Smart Meters, Julie Tupper, et al., Request for Commission Investigation to Allow CMP Customers to Retain Existing Analog Meters, Docket Nos , , , , and , Order (Part II) (June 22, 2011)... 7, 8, 9, 10 iv

6 STATEMENT OF FACTS AND PROCEDURAL HISTORY I. The Smart Meter Cases A. The Original Proceeding Approving Advanced Metering Infrastructure In 2007, Central Maine Power Company ("CMP") proposed to implement an Advanced Metering Infrastructure ("AMI") program (also referred to as "Smart Grid") on a company-wide basis. Central Maine Power Company, Request for Alternative Rate Plan, Docket No (II), Order Approving Installation of AMI Technology (Feb. 25, 2010) ("AMI Order"); See also, Central Maine Power Company, Request for Alternative Rate Plan, Docket No , Alternative Rate Plan Vols. V & VI (May 1, 2007). CMP's AMI proposal included providing electric meters (referred to as "smart meters") to all of its customers that supported a two-way communications network and a meter data management system. AMI Order at 1. After examining CMP's proposed AMI program, the parties to the proceeding agreed that the Commission should defer making a decision on the program, and continue to examine the costs and benefits. Id. Subsequent to the Commission's decision in the AMI Order, Congress enacted the American Recovery and Reinvestment Act of 2009 ("ARRA"). Pub. L. No , 123 Stat. 115 (2009). The ARRA included a provision whereby electric utilities could become eligible for grants of matching funds for up to 50% of the cost of a qualifying Smart Grid program. Id. 405; 123 Stat. 115, 143. CMP applied for just such a grant in August of 2009, and in October of 2009 the 1

7 U.S. Department of Energy notified CMP that it had received a $95.9 million grant. AMI Order at 2. On February 25, 2010, the Commission approved CMP's AMI project and the associated ratemaking methodology. Id. at 6-9. In doing so, the Commission recognized that CMP s AMI program allows for automated and remote meter reading, detailed customer usage measurement and data storage, and communications to and from customer meters. AMI systems also provide potential operational savings (e.g., lower storm restoration costs) and a platform for programs that allow customers to lower their energy costs through more accurate and timely information and pricing programs that better reflect the hourly and seasonal differences in electricity costs (e.g., time-of-use ("TOU") rates). Id. at 7-8. B. The "Opt-Out" Investigation On October 25, 2010, the Commission received a complaint pursuant to 35- A M.R.S signed by Elisa Boxer-Cook and eleven other persons ("Boxer- Cook Complaint"). Elisa Boxer-Cook, et al., Request for Commission Investigation in Pursuing the Smart Meter Initiative, Teresa Swinbourne, et al., Request for Commission Investigation into Unreasonable, Insufficient and Discriminatory Decisions to Implement the use of Smart Meters to CMP Customers Disregarding Choice in Regards to Wireless Activity and Consumer's Right to Privacy Within Their Homes, Docket Nos and , 2

8 Notice of Investigation at 2 (Jan. 7, 2011) ("Cook-Swinbourne NoI") The Boxer- Cook Complaint alleged that CMP's practices with regard to the installation of smart meters were unreasonable, inadequate, and inconsistent with legislative mandates. Id. Specifically, the Complaint raised issues of health, safety, and security with regard to smart meters, and cited information the complainants suggested indicated that the radio-frequency ("RF") emitted by smart meters could be a potential carcinogen, and that certain individuals are sensitive to RF radiation to such a degree that a smart meter could potentially be harmful to their health. Id. As relief, the Boxer-Cook Complaint requested, among other things, that the Commission require CMP to allow customers to elect not to receive a smart meter (i.e., "opt-out" of the AMI program). Id. at 3. Before the Commission acted on the Boxer-Cook Complaint, the Commission received a second complaint pursuant to 35-A M.R.S. 1302, this time signed by Teresa Swinbourne and nine other persons ("Swinbourne Complaint"). Cook-Swinbourne NoI at 4. The Swinbourne Complaint was similar to the Boxer-Cook Complaint and requested similar relief. Id. On January 7, 2011, the Commission consolidated the two complaints into one investigation, referred to as the "Opt-Out Investigation." Id. In initiating the investigation, the Commission stated that, given that the Federal Communications Commission ("FCC") is the agency charged with setting standards regarding RF emissions, it was unclear that the Commission was the appropriate entity to 3

9 consider the potential health consequences of smart meters. Id. at 6. Consequently, the Commission declined to examine the potential health implications of smart meters, deferring to the FCC, and instead focused the investigation on whether CMP's policy of not allowing consumers to "opt-out" of the AMI program was unreasonable, insufficient, or unjustly discriminatory. 1 Id. at 7. The Opt- Out Investigation consisted of several technical conferences, written and oral data requests and responses, and an intensive four-month negotiation among CMP, the complainants, intervenors, and Commission Staff aimed at reaching a mutually agreeable opt-out program. 2 Ultimately, the parties were unable to reach a final agreement. However, the parties agreed to a process that would allow for expedited Commission resolution of the matter, and agreed that Commission staff would submit a bench analysis regarding an opt-out program 1 Subsequent to the opening of the Opt-Out Investigation, the Commission received several more complaints pursuant to 35-A M.R.S regarding CMP's AMI program, three of which the Commission consolidated into the Opt-Out Investigation. Elisa Boxer-Cook, et al., Request for Commission Investigation in Pursuing the Smart Meter Initiative, Teresa Swinbourne, et al., Request for Commission Investigation into Unreasonable, Insufficient and Discriminatory Decisions to Implement the use of Smart Meters to CMP Customers Disregarding Choice in Regards to Wireless Activity and Consumer's Right to Privacy Within Their Homes, Suzanne A. Foley-Ferguson, et al., Request for Commission Investigation Into Advanced Metering Infrastructure in Accordance with the Legislature, Stephen & Dianne Wilkins. Request for Commission Investigation into CMP's Violation of Homeowner Rights and the Exposure of the Public Health Risk of Smart Meters, Docket Nos , , , and , Notice of Investigation (Feb. 18, 2011). 2 The lead complainant in a Section 1302 complaint is, by operation of law, a party in any proceeding that arises from that complaint C.M.R. ch. 110, 2(K). The lead complainants in the Opt-Out Investigation were: Elisa Boxer-Cook, Teresa Swinbourne; Suzanne Foley-Ferguson, Dianne and Stephen Wilkins, and Julie Tupper. There were several intervenors in the Opt-Out Investigation that participated in the proceedings to varying degrees. All intervenors were full parties to the Opt-Out Investigation. The intervenors were: the OPA, Averyl Hill, Amy Blake, Melissa Hutchinson, Aaron Scifres, Karen D'Andrea, Rep. Heather Sirocki, Rep. Ellie Espling, and Elysia Drew. 4

10 into the record. 3 The parties would then have an opportunity to provide written comments to the Commission on the bench analysis. The parties declined the opportunity for an evidentiary hearing or oral argument before the Commission. On April 21, 2011, Commission Staff issued its Bench Analysis summarizing the investigation to date and proposing an opt-out program for the Commission's consideration. Elisa Boxer-Cook, et al., Request for Commission Investigation in Pursuing the Smart Meter Initiative, Docket No , Bench Analysis (Apr. 21, 2011) ("Bench Analysis"). The Opt-Out Program described in the Bench Analysis was the result of the input and information provided by the parties. Bench Analysis at 2. The Bench Analysis recommended that the Commission require CMP to offer its residential and small commercial customers three meter options: retaining their existing analog meter, receiving a smart meter with the communications capability disabled, or receiving a standard wireless smart meter. Id. Customers would also have the option to relocate the standard wireless smart meter to another location on the customers' home or property, with such relocation to be done at the customers' expense. Id. at 3. The Bench Analysis also recommended initial and ongoing charges to be associated with opting-out, a customer communications program to educate CMP customers about their opt-out options, and a low-income 3 A bench analysis is a report issued by the Hearing Examiner assigned to a given matter that presents to the Commission an analysis of the issues raised in the proceeding and, often, contains Commission Staff's recommended resolution to the proceeding. Unlike an Examiner's Report, a Bench Analysis is not presented in the form of a draft Commission Order. 5

11 assistance program to make opting-out more affordable for low-income customers. Id. at 4-7. All of the lead complainants in the proceeding (Elisa Boxer-Cook, Teresa Swinbourne, Suzanne Foley-Ferguson, Stephen and Dianne Wilkins, and Julie Tupper) jointly filed comments in support of the Bench Analysis and asked the Commission to adopt the Staff's recommendations contained therein. Boxer-Cook, et al., Docket No , Reply Comments in Support of Hearing Examiner's and Staff's Bench Analysis and Recommendations (May 4, 2011). 4 Also filing comments in support of the Bench Analysis were intervenors Rep. Heather Sirocki and the OPA, both urging the Commission to adopt the recommendations in the Bench Analysis. Boxer-Cook, et al., Docket No , Comments of Rep. Heather Sirocki (Apr. 26, 2011); Boxer-Cook, et al., Docket No , Comments of the Public Advocate (Apr. 29, 2011). Intervenor Karen D'Andrea expressed her support for the Bench Analysis generally, but disagreed with the 4 Ms. Foley-Ferguson and Ms. Tupper filed separate comments stating that customers who choose to opt out should not be charged to do so. (Supp. 56); Suzanne Foley-Ferguson, et al., Request for Commission Investigation Into Advanced Metering Infrastructure in Accordance with the Legislature, Docket No , Letter to Commissioners Urging No Cost Opt Outs (May 16, 2011); Tupper, et al., Docket No , Comments in Response to Staff Bench Analysis (Apr. 29, 2011). Ms. Wilkins filed separate comments urging the Commission to "adopt in full" the Staff recommendations in the Bench Analysis. Stephen and Dianne Wilkins, et al., Request for Commission Investigation into CMP's Violation of Homeowner Rights and the Exposure of the Public Health Risk of Smart Meters, Docket No , Comments in Support of Hearing Examiner's and Staff's Bench Analysis and Recommendations at 2 (Apr. 28, 2011). Ms. Swinbourne also filed separate comments supporting the Bench Analysis. Teresa Swinbourne, et al., Request for Commission investigation into Unreasonable, Insufficient and Discriminatory Decision to Implement the use of Smart Meters to CMP Customers Disregarding Choice in Regards to Wireless Activity and Consumer's Right to Privacy Within Their Homes, Docket No , Comments in Support of Hearing Examiner's and Staff's Bench Analysis and Recommendations (Apr. 29, 2011). 6

12 Staff's recommendation of an opt-out fee. Boxer-Cook, et al., Docket No , Comments of Karen D'Andrea (Apr. 21, 2011). The Commission issued its Order in the Opt-Out Investigation in two parts. On May 19, 2011, the Commission issued its Part I Order and on June 22, 2011 it issued its Part II Order. The Part I Order described the Commission's decision and the Part II Order provided the background, analysis, and reasoning for the Commission's decision (collectively the "Opt-Out Orders"). 5 In its Opt-Out Orders, the Commission adopted the requirement that CMP allow customers who do not want a smart meter with wireless communications capability to either retain their existing analog meter (or its functional equivalent) or to obtain a smart meter with the wireless communications feature disabled. Part I Order at 2. To offset the projected cost to CMP for additional personnel and infrastructure to support an incomplete smart meter network, the Commission ordered that customers who choose to opt-out of the smart meter program pay a one-time up-front charge and a smaller recurring monthly charge. Part I Order at The Commission also adopted the low-income assistance program recommended by Commission Staff. Id. at 14. Of the lead complainants, only Suzanne Foley-Ferguson filed a Motion to Reconsider the Commission's Opt-Out Orders. Foley-Ferguson, et al., Docket No. 5 Chapter 110, 11(C)(2) of the Commission's Rules allows the Commission to issue its orders in two parts, with the first part plainly stating the result of the decision and summarizing the factual conclusions reached, and the second part containing full statements or findings of fact C.M.R. ch. 110, 11(C)(2). 7

13 , Motion to Reconsider Order (July 13, 2011). The Commission denied Ms. Foley-Ferguson's Motion by an Order issued on August 24, No party appealed the Opt-Out Orders. 6 II. The Friedman Complaint A. Initial Proceeding On July 29, 2011, Ed Friedman and seventeen other persons (collectively "Complainants") filed a complaint against both CMP and the Commission pursuant to 35-A M.R.S Ed Friedman, et al., Request for Commission Investigation into Smart Meters and Smart Meter Opt-Out, Docket No , Complaint (July 29, 2011) ("Friedman Complaint"). The Friedman Complaint alleged that new information regarding the health effects of RF emissions had come to light subsequent to the issuance of the Opt-Out Orders, and that previous Commission Orders did not adequately address privacy and trespass issues. Id. As relief, the Friedman Complaint asked (1) that the Commission stay the further installation of wireless smart meters; (2) if a stay is not possible that future installations be "opt-in"; (3) that any future opt-outs be at no cost to customers; (4) that communications from CMP include information that expresses the RF-related health concerns of the complainants; and (5) that CMP establish a toll-free hotline for smart meter complaints. Id. 6 Dianne Wilkins appealed the February 18, 2011 NoI consolidating the Wilkins Complaint with the other Opt-Out Complaints. On November 21, 2011, this Court dismissed Ms. Wilkins's appeal for failure to file a brief. Wilkins v. Pub. Utils. Comm'n, No. PUC , Order Dismissing Appeal (Nov. 21, 2011). 8

14 On August 31, 2011, the Commission dismissed the Friedman Complaint on two grounds. Ed Friedman, et al., Docket No , Order Dismissing Complaint (Aug. 31, 2011). First, the Commission dismissed the portions of the Friedman Complaint that were directed at the Commission itself. Id. at 5. The Commission explained that 35-A M.R.S allowed ten or more persons to file a complaint regarding the practices of a utility, but that there was no mechanism in Section 1302 for such a complaint against the Commission itself. Id. Accordingly because the portions of the Friedman Complaint directed at the Commission were without a statutory basis, the Commission dismissed them as without merit. Id. As to the portions of the Friedman Complaint directed at CMP, the Commission explained, in detail, that all of the allegations raised had been considered by the Commission in various orders in the Opt-Out Investigation, and that the Commission had resolved all of those issues through its direction to CMP in the Opt-Out Orders; direction that CMP was, and is, complying with. Id. Accordingly, the Commission dismissed the portions of the Friedman Complaint that were directed at CMP on the basis that, by complying with the Commission's Orders, CMP was taking adequate steps to remove the cause of the Complaint. 7 Id. On October 31, 2011, Mr. Friedman appealed the Commission's Order dismissing the Friedman Complaint. Mr. Friedman raised several issues on appeal, 7 On September 19, 2011, Mr. Friedman filed a Motion to Reconsider the Commission's denial of his Complaint. On October 11, 2011, Mr. Friedman's Motion was denied by operation of law twenty days after its submission C.M.R. ch 110, 11(D). 9

15 including the Commission's failure to adequately examine any health and safety issues regarding smart meters, privacy and security concerns, property rights concerns, and constitutional concerns with regard to the Fourth Amendment's protections against unreasonable searches and seizures. Brief of Appellant at 8-9, Friedman v. Pub. Util's Comm'n, PUC (Me. Jan. 10, 2012). B. Decision on Appeal On July 12, 2012, this Court issued its decision on Mr. Friedman's appeal. Friedman v. Pub. Utils. Comm'n, 2012 ME 90. In its decision, the Court affirmed the Commission's dismissal of the Friedman Complaint with respect to the privacy, trespass, property rights, and Fourth Amendment issues directed at CMP. Friedman, 2012 ME 90, 12. The Court held that the Commission did not abuse its discretion when dismissing these portions of the Friedman Complaint as the Commission had adequately addressed these issues in the Opt-Out Investigation, and CMP's implementation of the Opt-Out Orders removed the cause of these aspects of the Friedman Complaint. Id. The Court also dismissed the portions of the Friedman Complaint directed at the Commission itself. Id. 13. The Court found that 35-A M.R.S is not "a proper mechanism to assert a violation of constitutional rights resulting from an earlier, final decision of the Commission," and held that the Commission properly dismissed these portions of the Freidman Complaint as without merit. Id. 10

16 On Mr. Friedman's allegation that the Commission did not adequately investigate the health and safety concerns raised in the Friedman Complaint, however, the Court agreed with Mr. Friedman. Id. 11. The Court found that while the Commission may have considered health and safety issues, the Commission did not resolve those issues. Id. Accordingly, the Court vacated the portion of the Commission's Order dismissing Mr. Friedman's complaint that was directed at CMP and raised health and safety concerns, and remanded the matter back to the Commission. Id. In so doing, the Court specifically noted that the Commission may not have the technical expertise necessary to conduct an independent investigation of smart meter RF health issues, and may rely on the findings of other state and federal agencies. Id. 11 n. 7 C. Proceeding on Remand After receiving the Court's Friedman decision, the Commission promptly commenced an investigation into the issue remanded by the Court. 8 Ed Friedman, et al., Request for Investigation into Smart Meters and Smart Meter Opt-Out, Docket No , Notice of Investigation (July 24, 2012) (CMS Item No. 8 On August 7, 2012, the Commission received a complaint signed by Deborah Oliver and twenty-three other persons against CMP. Deborah Oliver, et al., Request for Commission Investigation into Central Maine Power Company and Smart Meters, Docket No , "Ten-Person" Complaint Pursuant to 35-A M.R.S.A. Section 1302 (Aug 7, 2012) (Ms. Oliver's complaint is dated August 6, 2012, but was filed at the Commission on August 7, 2012). Ms. Oliver requested that, in response to the July 12, 2012 Law Court decision, the Commission initiate an investigation, pursuant to 35-A M.R.S. 1302, into health and safety concerns associated with CMP's smart meters. Id. at 2. Because the issues raised in Ms. Oliver's complaint were identical to issues raised in Mr. Friedman's complaint, the Commission consolidated Ms. Oliver's complaint into Docket No Deborah Oliver, et al., Docket No , Notice of Investigation and Consolidation (Sep. 26, 2012). 11

17 15). 9 The Office of the Public Advocate ("OPA"), and several individual citizens petitioned to intervene in the proceeding, including several of the parties to the original Opt-Out Investigation. 10 Over the course of the next two-and-a-half years, the Commission proceeded to exhaustively investigate the health and safety issues raised in the Friedman Complaint. In September of 2012, CMP filed its direct testimony. Friedman et al., Docket No , CMP Testimony (Sep. 19, 2012) (CMS Item Nos. 85 & 86). CMP's testimony consisted primarily of the expert testimony of William H. Bailey, Ph.D. and Yakov Shkolnikov, Ph.D. CMP also submitted, as Exhibit B to the Company's testimony, an RF monitoring field study, "Measurement Validation of Exposure Predications from Central Maine Power Smart Meter Network" conducted by Dr. Shkolnikov. As another exhibit to its testimony, CMP included the joint testimony of Dr. Linda S. Erreich, Ph.D., Dr. Shkolnikov, and Dr. Bailey that was submitted on November 16, 2010 in the Opt-Out Investigation. Drs. Bailey and Shkolnikov concluded that in their expert opinions, "[t]here is no reliable scientific basis to conclude that the RF fields associated with the operation 9 For the Court's convenience, the Appellees are listing the Case Management System (CMS) item number of each filing in Docket No An index of the CMS item numbers can be found on pages 1-63 of the Appendix. 10 The Commission granted the following petitions to intervene: OPA, Deborah Oliver, Diane Wilkins, Rep. Andrea Boland, Alan Stone, Paulete Beaudoin, Suzanne Foley-Ferguson, International Brotherhood of Electrical Workers Local 1873, Autumn Brook, Jane Edwards, Elery Keene, Averyl Hill, Mary Fournier, David Fournier, Theodore and Cornelia Tibbals, May Hankins, Elisa Boxer, Jack and Deborah Heffernan, Jennifer Lunden, Citizens for health, Laurie Wolfrum, and Julie Tupper. Friedman, et al., Docket No , Procedural Order (Intervention/Scheduling) (August 10, 2012). 12

18 of these Smart Meters and its Mesh network will cause or contribute to adverse health effects in the population." After CMP submitted its direct testimony, parties were given an opportunity to conduct written discovery on that testimony. After conducting written discovery, parties were provided with the opportunity to cross-examine CMP's experts during oral discovery sessions that the Commission refers to as "technical conferences." Following discovery on CMP s testimony, on February 1, 2013, the Complainants filed their direct testimony. Friedman et al., Docket No , Testimony (Feb 1, 2013) (CMS Item Nos , ). Complainants presented testimony of various expert witnesses along with the testimony of several lay witnesses. Generally, Complainants' expert witnesses testified to their opinion that low-level RF emissions may create health and safety risks and the lay witnesses testified regarding their sensitivity to RF emissions and the associated health impacts believed to be caused by smart meters. As with the CMP witnesses, Complainants' witnesses were subject to both written and oral discovery from the parties in the case. Also on February 1, 2013, the OPA submitted a report it commissioned from True North Associates and C2 Systems entitled "Smart Meter RF Testing Report." Freidman et al., Docket No , OPA Report (Feb. 1, 2013) (CMS Item No. 196). The OPA study measured the maximum and average power output of a 13

19 sample of smart meters and other system components of CMP's AMI system, and assessed whether the signal intensities from the components of the system were in compliance with the FCC regulations that prescribe limits for safe exposure of humans. The measurements taken for the OPA Study showed that even when combined with other RF signals occurring in an urban setting, the aggregate level of RF emissions was, on average, roughly 20 times lower than the FCC standards. As with CMP's and Complainants' witnesses, parties were given an opportunity to conduct written and oral discovery on the OPA's experts. Additionally, over the course of approximately three months in late 2012 and early 2013, several intervenors in the case began submitting various unsolicited studies and other materials into the CMS case file for Docket No The separate items submitted by the intervenors numbered in the hundreds of documents totaling thousands of pages of material. None of these documents were supported by expert testimony and were, therefore, hearsay evidence. Nevertheless, the Commission undertook a review of the voluminous materials submitted by the intervenors to determine which of the materials were relevant to the proceeding and could be admitted into the evidentiary record of the proceeding. 11 In furtherance of this effort, the Commission held two all-day 11 Because the materials were non-testimonial statements offered in evidence to prove the truth of the matters therein, the Commission held that these materials were hearsay pursuant to Me. R. Evid. 801(c). However, the Commission has a statutory standard for the admission of hearsay evidence that differs somewhat from the Maine Rules of Evidence. Under 35-A M.R.S. 1311(2), "A statement not specifically covered by the hearsay exceptions in the rules of evidence but having equivalent circumstantial guarantees of trustworthiness may not be excluded by the hearsay rules, if the presiding officer determines that: (A) The statement is offered as evidence of a material fact and does not constitute 14

20 sessions with the parties to review the submitted materials. Several items were admitted without objection from CMP, and several other items were admitted notwithstanding the objections of CMP. The Commission ultimately admitted eighty-two different items into the evidentiary record of the proceeding through this process. Friedman et al., Docket No , Order on Admission of Non-Testimonial Studies (June 21, 2013) (A ) Subsequent to the admission of the intervenor materials, the Commission received several more items from witnesses at the public witness hearing held in this matter. The Commission reviewed those materials using the same process as was used for the intervenor materials, and subsequently admitted a further twenty items into the evidentiary record, for a total of 102 such items. Friedman et al., Docket No , Order on Admission of Non-Testimonial Studies by Public Witnesses and Official Notice of BCUC Decision (Oct. 1, 2013). Further, the Commission, at various times throughout the proceeding, took official notice of fifteen reports and studies from other jurisdictions and governmental agencies. See Friedman, et al., Docket No , Order, Appendix A at 4 (Dec. 19, 2014). As mentioned above, the Commission also held a public witness hearing in this matter on August 7, Additionally, public witnesses who were unable to attend the public witness hearing were allowed to submit written testimony provided that the testimony was submitted in affidavit form under oath. The unduly repetitious evidence; (B) The statement is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs; and (C) The general purposes of the rules of evidence and the interests of justice are best served by admission of the statement into evidence." 15

21 Commission also held an evidentiary hearing in this matter on October 30, 2013 at which CMP and Complainant witnesses were available for cross examination by the parties. After the evidentiary hearing, parties filed briefs and reply briefs. Upon review of the evidence presented in the case, the oral and written testimony and cross-examination, and the briefs of the parties, on March 25, 2015 the Commission Staff issued its recommendations to the Commission in the form of an Examiners' Report. Freidman, et al., Docket No , Examiners' Report (Mar. 25, 2015) (CMS Item No. 663) ("Examiners' Report"). In the Examiners' Report, the Commission Staff described and analyzed, in detail, the evidence presented in the case. Ultimately, the Staff recommended that the Commission conclude that "Advanced Metering Infrastructure (AMI), including the use of 'smart meters,' as implemented and operated by Central Maine Power Company (CMP or the Company), is a safe, reasonable, and adequate utility service as required by statute." Examiners' Report at 1. Staff based its recommendation on the following proposed findings: (1) that the RF emissions from CMP's smart meters and other related components comply with federal safety regulations and other RF emission standards; (2) no state, federal, or Canadian regulatory body or health agency has found smart meters to be unsafe; (3) the evidence presented in the proceeding is inconclusive with regard to any human health impacts from low-level RF generally; (4) there are no credible, peerreviewed scientific studies in the record that even purport to demonstrate a direct 16

22 human health risk from smart meter RF emissions; (5) studies in the record that were presented to demonstrate a risk to human health from RF exposure were based on RF exposure levels substantially higher than the RF emissions from smart meters; (6) the relative RF exposure from smart meters is significantly less than from other commonly used RF-emitting devices; and (7) CMP's installation and operation of smart meters is consistent with federal and state policies and is a generally accepted utility practice throughout the country. Id. at 1-2. Ms. Wilkins, Citizens for Health, CMP, and Mr. Friedman all filed exceptions. After review and analysis of the evidentiary record, the briefs and positions of the parties, as well as the conclusions of Commission Staff and the exceptions to the Examiners' Report, on December 19, 2014 the Commission issued its final Order in this matter. Friedman, et al., Docket No , Order (Dec. 19, 2014) (A ) ("Order"). In its Order, the Commission found that "AMI, including the use of smart meters, as implemented and operated by CMP, does not present a credible threat of harm to the health and safety of CMP's customers and, based on the record of this proceeding is, therefore, safe." Order at 23. The two Commissioners sitting on this case then presented, in concurring opinions, their individual analyses of the evidentiary record, and their independent reasoning for reaching the joint conclusion that smart meters are safe. 12 The Commissioners emphasized in their joint decision that their different analytical approaches did "not 12 Chairman Welch recused himself from consideration of this matter. 17

23 vitiate their concurrence regarding the safety of the AMI meters and network in use in Maine." On January 9, 2015, Mr. Friedman appealed the Commission's Order to this Court. 18

24 ISSUES PRESENTED FOR REVIEW 1. Did the Commission s Order properly apply the standard expressed by the Law Court in Friedman and the Commission s statutory mandate in 35-A M.R.S. 101? 2. Was the Commission's determination that CMP's smart meters do not pose a credible threat of harm to CMP's customers based on substantial evidence in the record? 3. Did the Commission properly allocate the burden of proof in this proceeding? 4. Was the decision of the Commission that CMP's smart meters do not pose a credible threat of harm to CMP's customers supported by the concurring opinions of the individual Commissioners? 19

25 SUMMARY OF ARGUMENT In response to the Law Court's Friedman decision, the Commission commenced an investigation into possible health effects of RF emissions from CMP's smart meters. The Commission applied the directive in 35-A M.R.S. 101 that it ensure that utilities provide "safe, reasonable, and adequate service," and the Law Court's articulation that the Commission must determine whether CMP's smart meters are "a credible threat to the health and safety of CMP's customers" as the standards for its investigation. Governed by these standards, the Commission undertook a two and one-half year long investigation into the RF emissions from CMP's smart meters. The Commission reviewed expert testimony from CMP, Office of the Public Advocate, and Mr. Friedman; granted intervention to twenty-two individual private citizens and two organizations; received hundreds of scientific studies totaling thousands of pages of information; reviewed several reports and findings from domestic and international regulatory bodies; held numerous case and technical conferences, a public witness hearing at the University of Maine at Augusta, and an evidentiary hearing; solicited legal briefs from the parties; directed Commission Staff to issue an Examiners' Report detailing recommended findings; and received public comments and exceptions to the Examiners' Report. At the conclusion of this process, the Commission issued an Order describing, in great detail, how CMP's smart meters operate, the science behind RF emissions generally, the RF emissions 20

26 from CMP's smart meters specifically, the expert and other testimony, the current state of the science of RF emissions, what other regulatory bodies have found regarding smart meter safety and, ultimately, the Commission concluded that CMP's smart meters do not pose a credible threat of harm to CMP's customers and are, therefore, safe. The Commission conducted its investigation in full compliance with applicable statutes and rules of procedure. The Commission's finding that CMP's smart meters do not pose a credible threat of harm to CMP's customers was based entirely on substantial evidence in the record. Moreover, the Commission did not act in any way to shift the burden of proof away from the utility. Finally, the individual Commissioner concurring opinions consistently support the finding that CMP's smart meters do not pose a credible threat of harm to the health of CMP s customers. Accordingly, the Commission respectfully requests that this Court affirm the Commission's decision in this matter. 21

27 STANDARD OF REVIEW "Generally, decisions of the Commission are reviewed only to determin[e] whether the agency's conclusions are unreasonable, unjust or unlawful in light of the record." Central Maine Power Co. v. Pub. Utils. Comm'n, 2014 ME 56, 18 (quoting Competitive Energy Servs. LLC v. Pub. Utils. Comm'n, 2003 ME 12, 15). The Law Court's review of a Commission decision is deferential, and a Commission decision in response to a complaint is reviewed for an abuse of discretion. Friedman v. Pub. Utils. Comm'n, 2012 ME 90, 6 (quoting Dunn v. Pub. Utils. Comm'n, 2006 ME 4, 5 ("Only when the Commission abuses the discretion entrusted to it, or fails to follow the mandate of the legislature, or to be bound by the prohibitions of the constitution, can this court intervene"); also see Central Me. Power Co. v. Pub. Utils. Comm'n, 405 A.2d 153, 182 (Me. 1979) (The Law Court "possesses neither the resources, the expertise, nor the inclination to act as a 'super-commission'") (emphasis in original). The Law Court's "review of the Commission's findings of fact is limited to only a determination whether they are supported by substantial evidence. If so, there is no legal error and such findings are final." New England Tel. & Tel. Co. v. Pub. Utils. Comm'n, 390 A.2d 8, 36 (Me. 1978). Further, "[a]s the trier of fact, there is no reason in law why the Commission [may] not reject the evidence of certain witnesses and accept the views of another." Id.; also see New England Tel. 22

28 & Tel. Co. v. Pub. Utils. Comm'n, 448 A.2d 272, 311 (Me. 1982) ("[T]he Commission may accept or reject all or part of the testimony of any witness"). The "Commission has been delegated the primary task of determining whether a utility has met its burden of proof." New England Tel. & Tel. Co. 448 A.2d at 311. This Court has also stated that if there is "substantial evidence in the record to support the Commission's decision," the Court need not consider Commission error with regard to the allocation of the burden of proof. Pine Tree Tel. & Tel. v. Pub. Utils. Comm'n, 631 A.2d 57, 62 (Me. 1993); Central Me. Power Co. v. Pub. Utils. Comm'n, 414 A.2d 1217, 1236 n. 10 (Me. 1980) ("Since we decide that the Commission's... Orders were supported by sufficient evidence affirmatively of record, we have no occasion to be embroiled in the controversy among the parties as to who may have borne either the burden of coming forward with evidence or the ultimate burden of proof"). 23

29 ARGUMENT I. The Commission's Order Fully Comports with the Standard Expressed by the Law Court in Friedman and the Commission s Statutory Mandate in 35-A M.R.S. 101 One of the Commission's "core regulatory responsibilities is to ensure that public utilities provide safe, reasonable, and adequate service to customers." Freidman v. Pub. Utils. Comm'n, 2012 ME 90, 7 (citing 35-A M.R.S. 101)(internal quotations omitted). In Friedman, this Court found that the Commission erred in that it did not make a finding regarding the health and safety of CMP s smart meter technology and remanded the matter back to the Commission for further proceedings. Id. 10, 13. Accordingly, and as described in detail in the Statement of Facts and Procedural History above, the Commission undertook an in-depth examination of the health and safety ramifications of CMP's smart meters. At the conclusion of the Commission's investigation, the Commission found that CMP's smart meters do "not present a credible threat of harm to the health and safety of CMP's customers...." Order at 23 (A. 90.) The Commission's Order was issued with a joint, agreed-upon decision of the Commission and two separate concurring opinions detailing the individual analytical approaches of the two Commissioners sitting on the case. Regardless of the different analytical approaches, both Commissioners ultimately concluded that CMP's smart meters are safe, i.e. do not present a credible threat of harm to the health and safety of CMP's customers. 24

30 Contrary to Mr. Freidman's assertions that the Commissioners "impermissibly relaxed the Court's no credible threat standard," the Commission faithfully applied that standard in its analysis of the evidence presented in this case. Indeed, it is Mr. Friedman who is altering the Court's standard by reading the word "credible" out of the Court's opinion. In setting a "credible threat" standard, the Court recognized, correctly, that the Commission's statutory mandate in 35-A M.R.S. 101 to "ensure... safe, reasonable, and adequate service" cannot mean that the Commission must ensure, as it appears Mr. Friedman would have it, the absolute absence of any threat or risk. Rather, safe utility service must be determined in context. As Commissioner Littell stated in his concurrence, "[a] credible threat to health and safety does not mean that any credible evidence of risk is sufficient to create a credible threat") (emphasis in original); Order at 30 (A. 97.), and as Commissioner Vannoy similarly observed in his concurrence, "[s]afety is a relative and contextual term, determined not only by an understanding of the scientific evidence and potential risks, but also by a policy judgment as to the acceptability of those risks given the benefits of the technology." Id. at 63 (A. 130.) It simply cannot be, as Mr. Friedman argues, that "safe" in the context of public utility regulation, means that the Commission must ensure that utility service be "free from harm or danger." (Blue Br. 22.) If this were so, there would be no utility service; all utility services and infrastructure come with known 25

31 inherent risks: electrocution, fire, explosion, etc. The Commission endeavors to ensure that utility services are "safe," i.e. do not present a credible threat of harm, by requiring utilities to mitigate the risk posed by known hazards such that the threat of harm, while not completely eliminated, is reduced to a level such that it is not a credible threat. The salient point with regard to smart meters, is that both Commissioners found, based on substantial evidence, that the RF emitted from CMP's smart meters does not pose a known threat of harm, but only represents a potential risk of unknown quantification that may not ever present itself. Order at (A ) (Commissioner Littell: "A causal relationship [of carcinogenicity] to RF has not been established"); 13 Id. at 74 (A. 141.) (Commissioner Vannoy: "[T]he existing science has not identified or confirmed negative effects from RF emissions from smart meters"). Accordingly, similar to mitigation measures for known threats like gas and electricity, such as pipeline safety regulations and practices, or the insulation of electrical wires referred to by Mr. Friedman (Blue Br. 34.), there are mitigating measures inherent in the physics of RF emissions and the operation of smart meters themselves, as well as FCC RF emission regulations. Smart meters are enclosed in reflective metal casings which direct RF emissions away from the interior of homes, and typically installed on the outside of homes, with exterior siding, home insulation, and interior walls further insulting occupants from RF emissions. 13 Commissioner Littell does point out that RF has been classified as a potential carcinogen, and that there "is scientific disagreement on whether RF should be classified as a known carcinogen." Order at 42 (A. 109.) 26

32 Friedman, et al., Docket No , Tech. Conf. Tr., at 11, 130, Testimony of Dr. Shkolnikov (Nov. 9, 2012) (CMS Item No. 151). Additionally, the level of RF exposure decreases exponentially with distance from the meter. Order at 19 (A. 86.) Put another way, some potential but unknown risk of harm cannot equate to a credible threat of harm such as to render a utility service "unsafe" under 35-A M.R.S Notwithstanding, however, the Commission's finding that CMP's smart meters are safe, the Commission, nevertheless, made the policy determination in the Opt-Out Investigation that CMP must offer its customers the option of declining to have a smart meter installed on their home. The Commission's policy decision in this regard, as with Commissioner Littell's preference that there be nocost or low-cost opt outs for customers whose medical professionals advise against the installation of a smart meter, is not predicated on any finding that CMP's smart meters pose a credible threat to the health and safety of CMP's customers, but rather is a recognition of the preference of a small minority of utility customers to not have a smart meter, regardless of the customers' reasons for so opting. This policy determination was accompanied by an opt-out fee to assure that the general body of ratepayers did not bear the incremental costs to the utility resulting from smart meter opt-outs. 27

33 II. The Commission's Decision is Supported by Substantial Evidence The record in this case is replete with information and evidence showing how RF emissions functions generally, how CMP's smart meters and related equipment utilize, receive, and emit RF, national and international RF safety standards, and how RF at various frequencies and at different power levels and proximities may affect the human body. As Mr. Friedman correctly states, "[t]here is disagreement in the scientific community" regarding the health effects of non-thermal RF and at what exposure levels any such effects may occur. (Blue Br. 7.) The responsibility of the Commission was to make a determination, based on substantial the evidence in the record, regarding whether the RF emissions specifically from CMP's smart meters posed a credible threat of harm to CMP's customers. Both Commissioner Vannoy and Commissioner Littell devote the majority of their respective concurring opinions to the discussion of the record evidence in this matter. Commissioner Littell bases his conclusion that CMP's smart meters are safe on the extremely low amounts of RF that are emitted from the meters. In Commissioner Littell's view [i]t is a basic principle of toxicology that the amount of exposure matters: measuring exposure and dosage often determines the level of safety. The lower exposure (and therefore risk) from smart meters on the outside of a house and repeaters on utility poles do not support a finding that the AMI meters are anything but safe based on the current science. 28